#19711 - 16, 17 And 18. Bpc Civil Litigation 2023 2024 Costs - BPC Civil Litigation

Court’s powers when it determines a summary judgment application:

• When the court determines a summary judgment on application it may give directions as to filing and service of a defence and/or give further directions about the management of the case.

• Further directions include the possibility of a conditional order, this will be made if it appears to the court that, in respect of some claim or defence, it is possible that it may succeed but it is improbable that it will do so.

• This is an order which requires a party to pay a sum of money into the court or to make a specified step in relation to the claim or defence, and which provides that the party’s claim will be dismissed or struck out if he does not comply.

General procedure:

• The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.

• The claimant may make more than one application for an order for an interim payment.

• A copy of an application notice must be served at least 14 days before the hearing of the application and be supported by evidence.

  • The application notice must state the order sought and the date, time and palace of the hearing.

  • It must be served with evidence in support as soon as practicable and not less than 3 days before the hearing. Wherever possible, a draft order sought should be filed.

• If the respondent to an application wishes to rely on written evidence they must file the written evidence and serve copies on every other party to the application at least 7 days before the hearing of the application.

• If the applicant wishes to rely on written evidence in reply, he must file the written evidence and serve a copy on the respondent at least 3 days before the hearing of the application.

• Written evidence which has been filed or served already does not have to be served again.

• The court may order an interim payment in one sum or in instalments.

Conditions to be satisfied and matters to be taken into account:

• The court may only make an order for an interim payment where any of the following conditions are satisfied:

  • The defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;

  • The claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;

  • It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom is he is seeking an order for an interim payment whether or not that the defendant is the only defendant or one of a number defendants to the claim.

  • The following conditions are satisfied:

    • the claimant is seeking an order for possession of land (whether or not any other order is also sought); and

    • the court is satisfied that, if the case went to trial, the defendant would be held liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied –

      • the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and

      • all the defendants are either –

        • a defendant that is insured in respect of the claim;

        • a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or

        • a defendant that is a public body.

• The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

• The court must take into account contributory negligence and any relevant set-off or counterclaim.

Powers of the court where it has made an order for interim payment:

• Where a defendant has been ordered to make an interim payment or has made one, the court may make an order to adjust the interim payment.

• The court may in particular order:

  • All or part of the interim payment to be repaid;

  • Vary or discharge the order for the interim payment; or

  • Order a defendant to reimburse, either wholly or partly, another defendant who has made an interim payment.

    • The court may only make an order for reimbursement if the defendant to be reimbursed made the interim payment in relation to a claim in respect of which he has made a claim against the other defendant for contribution, indemnity or other remedy and where the claim or part to which the interim payment relates has not been discontinued or disposed of, the circumstances are such that the court could make an order for interim payment.

• The court may make an order under this rule without an application by any party if it makes the order when it disposes of the claim or any part of it.

• Where a defendant has made an interim payment and the amount of the payment is more than his total liability under the final judgment or order, the court may award him interest on the overpaid amount from the date when he made the interim payment.

Restriction on disclosure of an interim payment:

• The fact that a defendant has made an interim payment, whether voluntarily or by court order, shall not be disclosed to the trial judge until all questions of liability and the amount of money to be awarded have been decided unless the defendant agrees.

Security for Costs:

• A defendant to any claim may apply for security for his costs.

• Application for security of costs must be supported by written evidence.

• Where the court makes an order for security for costs, it will –

  • Determine the amount of security; and

  • Direct the manner and time within which the security must be given.

Conditions to be Satisfied:

• The court may make an order for security of costs if satisfied having regard to all the circumstances of the case, that it is just to make such an order; and one or more of the conditions apply or an enactment permits the court to require security for costs.

• The conditions (these are matters of fact, not discretion, parties should not attempt to go into the merits of the case unless it is clear to a high degree of probability that that party would succeed):

  • The claimant is resident out of the jurisdiction but not resident in a State bound by the Hague Convention.

  • The claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so;

    • Security for costs may be ordered against a company or other incorporated body where there is reason to believe that it will be unable to pay the applicant’s costs if ordered to do so.

    • The power is discretionary. The applicant must adduce sufficient evidence.

  • The claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation;

  • The claimant failed to give his address in the claim form, or gave an incorrect address in that form;

  • The claimant is acting as a nominal claimant, other than as a representative claimant under Part 19, and there is reason to believe that he will be unable to pay the defendant’s costs if ordered to do so;

  • The claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.

    • This includes:

      • Dissipation of assets;

      • Transfer overseas;

      • Transfer into the names of third parties; or

      • Transfer to places unknown to the defendant.

    • This test is objective and the transfer must have taken place before or during proceedings.

Stifling:

• If the effect of an order for security would be to prevent the respondent to the application continuing its claim, then security should not be ordered. The burden lies on the respondent, on the balance of probabilities, that the effect of an order would be to stifle the claim.

• To discharge the claim, it is necessary for the claimant to show that it cannot provide security and cannot obtain appropriate assistance to do so.

Right to discontinue a claim:

• A claimant who claims more than one remedy and subsequently abandons their claim to one more more of the remedies but continues with their claim for the other remedies is not treated as discontinuing all or part of a claim.

• At any time, a claimant may discontinue all or part of a claim against one or more defendants.

• However, the claimant must obtain the permission of the court if they wish to discontinue a claim where the court has granted an interim injunction or any party has given an undertaking to the court.

• Where the claimant has received an interim payment in relation to a claim, he may discontinue that claim only if the defendant who made the interim payment consents in writing or the court gives permission.

• Where there is more than one claimant, a claimant may not discontinue unless every other claimant consents in writing or the court gives permission.

Procedure:

• To discontinue a claim or part of a...